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What California employers need to know about the new CFRA regulations effective July 1, 2015

Executive Summary: On July 1, 2015, the Fair Employment and Housing Council's (FEHC) new regulations interpreting the California Family Rights Act (CFRA) went into effect. The regulations were intended to clarify the previous regulations and align certain aspects of CFRA with the federal Family and Medical Leave Act (FMLA). For instance, the new regulations incorporate the March 2013 FMLA regulations to the extent they are not inconsistent. However, CFRA provides additional protections for California employees. Below is a brief summary of some of the significant changes to the CFRA regulations:

Covered Employers

CFRA only applies to covered employers who employ 50 or more employees. This includes employees on paid or unpaid leave. Further, employees are not entitled to CFRA leave unless the employer employs at least 50 employees within 75 miles of the employee's worksite. The new regulations now extend CFRA's definition of a "covered employer" to include successors in interest of covered employers and employers who may be deemed joint employers of an employee. Specifically with respect to joint employers, the regulations state that multiple businesses that exercise some control over an individual's work or working conditions may be covered as joint employers. Whether a joint employment relationship exists must be determined based on the totality of the circumstances. The amendments provide some non-exhaustive examples of situations where a joint employment relationship generally will be deemed to exist.

In addition, the regulations clarify where an employee's "worksite" is located. They specifically address situations where the employee has no fixed worksite or where multiple employers jointly employ the employee.

The expansion of these provisions to include joint employers means employers may now be more likely to meet the 50-employee requirement than under the previous regulations. Employers who are found to jointly employ certain employees will need to consider both their employees as well as any employees that they jointly employ in calculating the number of employees for the CFRA threshold.

Eligible Employees

To be eligible for CFRA leave, employees must be employed with the employer for a total of at least 12 months and have worked at least 1,250 hours with the employer in the 12 months preceding the CFRA leave. In calculating whether an employee meets the 12-months of service requirement, the revised regulations permit employers to exclude employment periods prior to a break in service of seven years or more, with certain exceptions. However, if an employer does consider employment prior to a continuous break in service greater than seven years, it must do so uniformly for all employees who have similar breaks in service.

The regulations add that an employee who was not eligible for CFRA leave at the start of the leave because he or she was not employed for at least 12 months (but met the 1,250-hour requirement) may become eligible while on leave. This would require the employer to designate as CFRA leave the portion of the leave in which the employee meets the 12-month requirement.

Serious Health Condition

The definition of a "serious health condition" involving inpatient care no longer requires the patient to actually stay overnight in a health care facility, as long as the facility admitted the patient with the expectation that the patient would remain overnight.

Notice of CFRA Leave

There are also changes to the requirements that an employee provide notice of the need for CFRA leave and that the employer respond. The amendments reduce an employer's maximum amount of time to respond to an employee's leave request from 10 calendar days to 5 business days. Additionally, the amendments explicitly require an employee to respond to an employer's permissible inquiries which are intended to determine whether an absence is CFRA qualifying. If the employer cannot determine whether the leave qualifies under CFRA, the employee's failure to respond may warrant denial of CFRA protection.

Medical Certification

At the same time, the amendments further limit what employers can do to obtain medical certification of a serious health condition. They prohibit employers from contacting a health care provider for any reason other than to authenticate a medical certification. In addition, even if the employer has reason to doubt the validity of a certification, it must have a "good faith, objective" reason before requiring the employee to obtain a second opinion. The regulations also specifically remind employers that they cannot ask for symptoms or a diagnosis in the medical certification.

The FEHC has clarified the rules regarding an employee's failure to timely return a required medical certification or recertification. Absent extenuating circumstances, an employer may deny CFRA protection after 15 days following the request for certification or recertification until a sufficient certification or recertification is provided. However, at the time an employer requests certification, it needs to advise the employee of the potential consequences for failure to provide adequate certification.

Terms of CFRA Leave

The new regulations modify and add new provisions regarding the terms of CFRA leave and benefits. Notably, they clarify that an employee who is receiving any form of disability payments or who is receiving Paid Family Leave to care for the serious health condition of a family member or to bond with a new child is not on an unpaid leave. Accordingly, an employer cannot require the employee to substitute paid time off, sick leave, or accrued vacation.

Reinstatement

The provisions regarding an employee's right to reinstatement upon return from CFRA leave have been expanded. The amendments highlight that the employer must reinstate the employee even if it had replaced the employee or restructured his or her previous position to accommodate the leave. If the employee is no longer qualified for the previous position because of the leave (e.g., the employee could not renew a license), the employer still must give the employee a reasonable opportunity to requalify. Further, the employee's right to be reinstated to the same or a comparable position ordinarily means the employer must place the employee in the same or a virtually identical position in terms of pay, benefits, shift, schedule, geographic location, working conditions, privileges, perquisites and status, with the same or substantially similar duties and responsibilities.

An employer may have certain defenses to reinstating the employee, which the amendments have clarified. The key employee rules have been updated and there is an added defense where the employee fraudulently obtains or uses CFRA leave.

Posting Notice of CFRA Rights and Obligations

Under the revised regulations, the employer must post the requisite notice where it can be seen by both employees and applicants for employment. Electronic posting may be sufficient.

The FEHC has also amended its sample workplace poster and health care certification form, and updated the regulations regarding calculating leave entitlement. Employers should have their documentation, including their posted notices and health care certification forms, evaluated to ensure they are using California compliant forms and that they are not improperly requesting certain information (e.g., symptoms, diagnosis).

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